dismissed EB-2 Case: Software Engineering

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
VlJBLIC COP't 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529~2090 
u.s. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: 
OCT 2 6 2010 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § I I 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you 
Perr\MCCfla:w 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition. The petitioner submitted a motion to reopen/reconsider that the director granted. The 
director then denied the motion on May 9, 2008. The matter is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a software telecom industry company. I It seeks to employ the beneficiary permanently 
in the United States as a senior systems software engineer pursuant to section 203(b )(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § I I 53(b)(2). As required by statute, an ETA 
Form 9089 Application for Alien Employment Certification approved by the Department of Labor 
(DOL), accompanied the petition. Upon reviewing the petition, the director determined that the 
beneficiary did not satisfY the minimum level of education stated on the labor certification. 
Specifically, the director determined that the beneficiary did not possess a bachelor's degree in 
information technology. In his denial of the petitioner's motion the director stated that the 
petitioner's assertion that it has the right to look at any acceptable qualification in hiring, including 
any combination of education, training or experience that is suitable and acceptable by the employer 
did not conform to the minimum requirements of the requested classification. The director again 
noted that the beneficiary did not have the required bachelor's degree in information technology. 
On appeal, counsel asserts that the even though the beneficiary does not have a master's or 
bachelor's degree in information technology, she nonetheless meets the qualifications listed on the 
labor certification because she has the substantial equivalent of a Master's degree in Information 
Technology. Counsel states that this equivalency is based upon the beneficiary's six year medical 
degree, which is more than a four year bachelor's degree, in addition to more than five years of work 
in the information technology field. Counsel refers to section 14 of the certified labor certification 
that states "any suitable combination of education, training or experience is acceptable." 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error 
in law or fact. The procedural history in this case is documented by the record and incorporated into 
the decision. Further elaboration of the procedural history will be made only as necessary. 
In pertinent part, section 203(b )(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. An advanced degree is a United States academic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The 
regulation further states: "A United States baccalaureate degree or a foreign equivalent degree 
followed by at least five years of progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." Jd. 
1 The AAO notes that the petitioner filed a subsequent 1-140 petition under the advanced degree or 
alien with exceptional ability on June 28, 2008 with the Texas Service Center. The record indicates 
that this classification based on a Notice of Intent to Deny was changed to a skilled worker 
classification and the petition was subsequently approved on December 17,2008. 
Page 3 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly 
submitted upon appeal? 
The beneficiary possesses a foreign medical degree from the 
Department of Medical Cybernetics and Biophysics, Moscow, Russia. We must consider whether 
the beneficiary'S medical degree is the foreign equivalent of a U.S. Master's degree. We must also 
consider whether the beneficiary meets the job requirements of the proffered job as set forth on the 
labor certification. 
Eligibility for the Classification Sought 
As noted above, the ETA Form 9089 in this matter is certified by DOL. DOL's role is limited to 
determining whether there are sufficient workers who are able, willing, qualified and available and 
whether the employment of the alien will adversely affect the wages and working conditions of workers 
in the United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.F.R. § 656.1(a). 
It is significant that none of the above inquiries assigned to DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd v. Feldman, 736 F. 2d 
1305,1309 (9th Cir. 1984); Madanyv. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
The AAO is bound by the Act, agency regulations, precedent decisions of the agency and published 
decisions from the circuit court of appeals from whatever circuit that the action arose. See NL.R.B. 
v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9th Cir. 1987) (administrative agencies 
are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. Ltd 
Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd 273 F.3d 874 (9th Cir. 2001) 
(unpublished agency decisions and agency legal memoranda are not binding under the AP A, even 
when they are published in private publications or widely circulated). 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg' I. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.c. §1153(a)(3) as amended in 1976. At that time, this section provided: 
2 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(l). The record in 
the instant case provides no reason to preclude consideration of any of the documents newly 
submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
3 The AAO notes the petitioner provided the beneficiary'S Diploma with Honors dated June 
1993 that states the beneficiary completed the whole course of the 
MC)SCI:lW Russia, with a specialization in biophysics and that on the State examination board 
and her transcripts for twelve semesters of university-level study. The diploma 
lary is qualified as a physician-cybernetics. 
Page 4 
Visas shall next be made available ... to qualified immigrants who are members of 
the professions .... 
The Act added section 203(b)(2)(A) of the Act, 8 U.S.C. §1153(b)(2)(A), which provides: 
Visas shall be made available ... to qualified immigrants who are members of the 
professions holding advanced degrees or their equivalent .... 
Significantly, the statutory language used prior to Matter of Shah, 17 I&N Dec. at 244 is identical to 
the statutory language used subsequent to that decision but for the requirement that the immigrant 
hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of 
Conference, published as part of the House of Representatives Conference Report on the Act, 
provides that "[in 1 considering equivalency in category 2 advanced degrees, it is anticipated that the 
alien must have a bachelor's degree with at least five years progressive experience in the 
professions." H.R. Conf. Rep. No. 955, 101st Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784,1990 
WL 201613 at *6786 (Oct. 26, 1990). 
At the time of enactment of section 203(b )(2) of the Act in 1990, it had been almost thirteen years 
since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it 
stated that an alien "must have a bachelor's degree" when considering equivalency for second 
preference immigrant visas. We must assume that Congress was aware of the agency's previous 
treatment of a "bachelor's degree" under the Act when the new classification was enacted and did 
not intend to alter the agency's interpretation ofthat term. See Lorillard v. Pons, 434 U.S. 575, 580-
81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it 
adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991) (an alien must have at least a bachelor's degree). 
In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the 
Immigration and Naturalization Service (the Service), responded to criticism that the regulation 
required an alien to have a bachelor's degree as a minimum and that the regulation did not allow for 
the substitution of experience for education. After reviewing section 121 of the Immigration Act of 
1990, Pub. L. 101-649 (1990), and the Joint Explanatory Statement of the Committee of Conference, 
the Service specifically noted that both the Act and the legislative history indicate that an alien must 
have at least a bachelor's degree: 
The Act states that, in order to qualify under the second classification, alien members 
of the professions must hold "advanced degrees or their equivalent." As the 
legislative history ... indicates, the equivalent of an advanced degree is "a bachelor's 
degree with at least five years progressive experience in the professions." Because 
neither the Act nor its legislative history indicates that bachelor's or advanced degrees 
must be United States degrees, the Service will recognize foreign equivalent degrees. 
But both the Act and its legislative history make clear that, in order to qualify as a 
Page 5 
professional under the third classification or to have experience equating to an 
advanced degree under the second, an alien must have at least a bachelor's degree. 
56 Fed. Reg. 60897, 60900 (Nov. 29,1991) (emphasis added). 
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under 
section 203(b )(2) of the Act as a member of the professions holding an advanced degree with 
anything less than a full baccalaureate degree. More specifically, an advanced degree in an 
unrelated field combined with five years of experience in a relevant field will not be considered to be 
the "foreign equivalent degree" to a United States baccalaureate degree. Matter of Shah, 17 I&N 
Dec. at 245. Where the analysis of the beneficiary's credentials relies on work experience alone or a 
combination of multiple lesser degrees, the result is the "equivalent" of a bachelor's degree rather 
than a "foreign equivalent degree.,,4 In order to have experience and education equating to an 
advanced degree under section 203(b )(2) of the Act, the beneficiary must have a single degree that is 
the "foreign equivalent degree" to a United States baccalaureate degree. 8 C.F .R. § 204.5(k)(2). As 
explained in the preamble to the final rule, persons who claim to qualify for an immigrant visa by 
virtue of education or experience equating to a bachelor's degree may qualify for a visa pursuant to 
section 203(b )(3)(A)(i) of the Act as a skilled worker with more than two years of training and 
experience. 56 Fed. Reg. at 60900. 
For this classification, advanced degree professional, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) 
requires the submission of an "official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree." For classification as a member of the 
professions, the regulation at 8 C.F.R. § 204.5(l)(3)(ii)(C) requires the submission of "an official 
college or university record showing the date the baccalaureate degree was awarded and the area of 
concentration of study." We cannot conclude that the evidence required to demonstrate that an alien 
is an advanced degree professional is any less than the evidence required to show that the alien is a 
professional. To do so would undermine the congressionally mandated classification scheme by 
allowing a lesser evidentiary standard for the more restrictive visa classification. Moreover, the 
commentary accompanying the proposed advanced degree professional regulation specifically states 
that a "baccalaureate means a bachelor's degree received from a college or university, or an 
equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Cf 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an official 
academic record showing that the alien has a degree, diploma, certificate or similar award from a 
college, university, school or other institution of learning relating to the area of exceptional ability"). 
In the instant matter, the beneficiary possesses a post secondary degree six years in length that is 
equal to or greater than a baccalaureate degree from a U.S. college or university. 
4 Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa 
classification, the "equivalence to completion of a college degree" as including, in certain cases, a 
specific combination of education and experience). The regulations pertaining to the immigrant 
classification sought in this matter do not contain similar language. 
Page 6 
With the 1-140 petition, the petitioner submitted three evaluation rpnorts The first report entitled 
"Educational Evaluation Report" is written by American Evaluation and 
••••••••••••••••••• iiiiln his report, _ states that based 
on the addendum to the beneficiary's diploma issued by the Russian State Medical University on 
the beneficiary's education in Russia is the equivalent of the U.S. Degree of Doctor 
of Medicine awarded by a U.S. regionally accredited college or' The second report, 
entitled "Professional Work Experience Evaluation Report," is and written 
School of Information Technology, 
_ states that the beneficiary's education and over five years of responsible 
professional work experience in the field of information technology are equivalent to a U.S. Master's 
degree of Information Technology awarded by a U.S. regionally accredited college or university. 
The third document contained in the 
dated by 
J.:r ph",,,, language certificate with English translation 
the Ministry of Education and Culture, 
Academic Diplomas, State 0_ This 
certificate states that the beneficiary'S from the Russian State Medical Univer~ 
equivalent to a second academic (master) degree among the academic degrees accepted in_ 
Since this third document does not establish any educational equivalency to a U.S. master's or 
bachelor's degree, the AAO will not discuss this document further in these proceedings as it has no 
probative value. 
The AAO notes that the examine distinct parts of the beneficiary's curriculum 
vitae. The first report examines the beneficiary's medical degree, while the second combines his 
medical degree and work experience to determine that the beneficiary has the equivalent of a U.S. 
master's degree in information technology. 
In determining the equivalency between the beneficiary'S medical degree and U.S. higher education, 
we have reviewed the Electronic Database for Global Education (EDGE) created by the American 
Association of Collegiate Registrars and Admissions Officer (AACRAO). AACRAO, according to 
its website, www.aacrao.org.is "a nonprofit, voluntary, professional association of more than 10,000 
higher education admissions and registration professionals who represent approximately 2,500 
institutions in more than 30 countries." Its mission "is to provide professional development, 
guidelines and voluntary standards to be used by higher education officials regarding the best 
practices in records management, admissions, enrollment management, administrative information 
technology and student services." According to the registration page for EDGE. 
http://aacraoedge.accrao.orgl register/index/php, EDGE is "a web-based resource for the evaluation 
of foreign educational credentials." 
With regard to the post secondary education system in Russia, EDGE notes that the Dip/om 
spetsialista in architecture, law, or medicine (six years) represents attainment of a level of education 
comparable to a first professional degree in architecture, law, or medicine in the United States. The 
Dip/om spelsialista in other fields (five years) represents attainment of a level of education 
comparable to a master's degree in the United States. Thus, the AAO would determine the 
Page 7 
beneficiary's medical degree (based on twelve semesters of studies and a state medical examination) 
to be the equivalent of a medical degree in the United States and an advanced degree for purposes of 
the EB2 advanced professional visa preference classification. 
Because the beneficiary does have a specialized advanced degree that is equivalent to an "United 
States advanced degree," the beneficiary does qualify for preference visa classification under section 
203(b )(2) of the Act as she does have the minimum level of education required by the certified ETA 
9089. 
Qualifications for the Job Offered 
Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth 
Circuit (Ninth Circuit) stated: 
[I]t appears that the DOL is responsible only for determining the availability of suitable 
American workers for a job and the impact of alien employment upon the domestic labor 
market. It does not appear that the DOL's role extends to determining if the alien is 
qualified for the job for which he seeks sixth preference status. That determination appears 
to be delegated to the INS under section 204(b), 8 U.S.c. § I I 54(b), as one of the 
determinations incident to the INS's decision whether the alien is entitled to sixth preference 
status. 
KR.K Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief 
from DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 
212(a)[(5)] of the ... [Act] ... is binding as to the findings of whether there are able, 
willing, qualified, and available United States workers for the job offered to the alien, 
and whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certification in no way indicates that the alien offered the 
certified job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) Id at 1009. The Ninth Circuit, citing KR.K Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in 
fact qualified to fill the certified job offer." Tongatapu, 736 F. 2d at 1309. 
The key to determining the job qualifications is found on ETA Form 9089 Part H. This section of 
the application for alien labor certification, "Job Opportunity Information," describes the terms and 
conditions of the job offered. It is important that the ETA Form 9089 be read as a whole. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, 
useIS may not ignore a term of the labor certification, nor may it impose additional requirements. 
Page 8 
See Madany, 696 F.2d at 1015. USCIS must examine "the language of the labor certification job 
requirements" in order to determine what the job requires. Id. The only rational manner by which 
uscrs can be expected to interpret the meaning of terms used to describe the requirements of a job 
in a labor certification is to examine the certified job offer exactly as it is completed by the 
prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 
1984) (emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor 
certification must involve reading and applying the plain language of the alien employment 
certification application form. See id. at 834. uscrs cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that DOL has formally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. 
In this matter, Part H, line 4, of the labor certification reflects that a master's degree in information 
technology degree is the minimum level of education required. Line 6 reflects that twelve months of 
work experience in the proffered position is also required. Lines 8-A,B and C, indicate that an 
alternate combination of a bachelor's degree5 with five years of work experience is acceptable. 
Line 9 reflects that a foreign educational equivalent is acceptable, and that the job title of the 
acceptable alternate occupation is programmer, software engineer or related occupation. Section 14 
indicates that "any suitable combination of education, training, or experience is acceptable." 
On appeal, counsel refers states that this language on the certified ETA Form 9089 means that even 
though an applicant may not have the required degree, the applicant may use ANY suitable 
combination of education, training or experience to qualify for the position. (Emphasis in original.) 
Counsel states that the director failed to acknowledge that this language is in the labor certification 
and therefore the beneficiary does have the specific requirements that is needed for the position. 
Counsel also states that the beneficiary'S degree is more than a bachelor's degree and therefore 
should satisfy the requirements. 
The AAO notes that the language contained in Section 14 (commonly known as the Kellogg 
language) refers to Section 656.17(h)( 4) of the PERM regulations that provides: 
(i) Alternative experience requirements must be substantially equivalent 
to the primary requirements of the job opportunity for which certification 
is sought; and 
(ii) If the alien beneficiary already is employed by the employer, and the 
alien does not meet the primary job requirements and only potentially 
qualifies for the job by virtue of the employer's alternative requirements, 
certification will be denied unless the application states that any suitable 
5 The AAO notes that the petitioner did not designate an alternate field of study for the master's 
degree at line H-7. Thus, the petitioner requires either a U.S. master's degree in information 
technology and one year of work experience or a baccalaureate degree in information technology 
with five years of work experience. 
Page 9 
combination of education, training, or experience is acceptable. 
This section of the PERM regulations is based on the Board of Alien Labor Certification Appeals 
(BALCA) holding in the pre-PERM case of Francis Kellogg, 1994-INA-465 (Feb. 2, 1998) (en 
banc). In Kellogg, the Board held that where the alien does not meet the primary job requirements, 
but only potentially qualifies for the job because the employer has chosen to list alternative job 
requirements, the employer's alternative requirements are considered to be unlawfully tailored to the 
alien's qualifications, unless the employer has indicated that applicants with any suitable 
combination of education, training or experience are acceptable. In Federal Insurance Co., the 
BALCA panel found that no evidence or explanation had been presented as to why it was essential 
for the Kellogg language to appear on Form 9089, other than to act as a legally binding 
acknowledgement or attestation by a petitioning employer that it followed the Kellogg requirement. 
BALCA held that, "because the existing Form 9089 does not reasonably accommodate an 
employer's ability to express this attestation, we hold that it would offend fundamental due process 
to deny an application for failure to write the attestation on the Form 9089." 
The panel also noted that the current Form 9089 very clearly did not include a Section that even 
suggests that it would be the correct place to write the Kellogg attestation, or that Section 14 would 
be the correct place to place the Kellogg language. The panel notes that while the regulation 
explicitly requires that the PERM application include the Kellogg language where it applies, there is 
not effective notice to the public on how to comply with the requirement. While the USCIS is not 
bound to the findings of the BALCA panel, it does find their reasoning with regard to the placement 
of the Kellogg language on the ETA Form 9089 to be of guidance. Further USCIS has consulted 
with the DOL pursuant to its statutory consultation authority at 8 C.F.R. § 204(b). The DOL position 
is that the placement of the Kellogg language on the ETA Form 9089, based on the Federal 
Insurance decision. does not reduce the actual minimum requirements below a bachelor degree -­
DOL would interpret the language as permitting alternatives to a bachelor degree that are equivalent 
to a bachelor degree. Thus, the Kellogg language would supplement the primary and alternative 
requirements but would not lower the educational bar further. In the instant matter, the petitioner 
would still need to establish that the beneficiary possesses a U.S. Master's degree or equivalent 
foreign degree in information technology or a U.S. baccalaureate degree or equivalent foreign degree 
in information technology with five years of work experience. 
In Part J of the ETA Form 9089, the beneficiary indicated that the highest level of education 
achieved relevant to the requested occupation is a doctorate degree6 in medicine from the_ 
in Russia. In corroboration of the ETA Form 9089, the petitioner provided 
the beneficiary's Diploma with Honors dated states the beneficiary completed the 
whole course of the Russian State Medical specialized in ~nd that 
based on the State examination board dated the beneficiar~ed as a 
•••• The record also contains a one page transcript of the beneficiary's twelve 
6 As stated previously, the beneficiary possesses a medical degree, and not a doctorate degree in 
medicine. 
I • 
Page 10 
semesters of medical studies at the , Moscow. The AAO notes 
that the beneficiary's transcript does not identify any specific coursework in information technology 
during the six years of her university-level studies, although course number 29 on her transcript, 
identified as programming, and course number 32, identified as system analysis and the automated 
control systems in healthcare, may have had some theoretical relationship to information technology. 
The overwhelming majority of the beneficiary's coursework is in the field of medicine. Thus, the 
beneficiary's academic qualifications do not meet the criteria stipulated in the certified ETA 9089; a 
master's degree in information technology or a bachelor's degree in information technology with 
five years of work experience. 
The beneficiary does have an advanced degree based on her medical degree; and, thus, does qualify 
for preference visa classification under section 203(b )(2) of the Act. However, the beneficiary does 
not meet the job requirements on the labor certification. For this reason, the petition may not be 
approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.c. § 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.